Citation Nr: 0726140
Decision Date: 08/21/07 Archive Date: 08/29/07
DOCKET NO. 02-19 816 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Entitlement to burial benefits under the provisions of
38 U.S.C.A. § 2307.
ATTORNEY FOR THE BOARD
LouElla Kuta, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1931 to March
1933 and from April 1933 to February 1934. He died in
November 1996. The appellant is the veteran's daughter.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2006 rating decision of the
Baltimore, Maryland, Regional Office (RO) of the Department
of Veterans Affairs (VA) which denied the benefit on appeal.
In a February 2002 decision, the Department of Veterans
Affairs (VA) Regional Office (RO) in Washington, DC denied
the appellant's claim for burial benefits under the
provisions of 38 U.S.C.A. § 2302. The appellant appealed.
In a December 2003 decision, the Board denied entitlement to
burial benefits under the provisions of 38 U.S.C.A. § 2302.
The appellant appealed this decision to the United States
Court of Appeals for Veterans Claims (Court). In a December
2004 Order, the Court affirmed the December 2003 Board
decision to the extent that the decision denied entitlement
to burial benefits under the provisions of 38 U.S.C.A.
§ 2302. The Court nevertheless vacated the December 2003
Board decision to the extent that the decision failed to
address entitlement to burial benefits under the provisions
of 38 U.S.C.A. § 2307. The Court remanded the case to the
Board as to that issue.
In April 2005, the Board remanded the case to the RO for
further development.
FINDINGS OF FACT
1. The veteran died in November 1996; the causes of death
listed on his death certificate was an acute myocardial
infarct due to coronary artery disease due to diffuse
arteriosclerosis. Other significant conditions contributing
to death, but not resulting in the underlying cause, were
metastatic bladder cancer and senility.
2. At the time of the veteran's death, he was not service-
connected for a disability.
3. The veteran did not die while admitted to a VA facility
for hospital, nursing home, or domiciliary care.
4. A service-connected disability was not the immediate or
underlying cause of the veteran's death, nor was a service-
connected disability etiologically related to the cause of
the veteran's death, nor did a service-connected disability
hasten death.
CONCLUSION OF LAW
Entitlement to service-connected burial benefits is not
warranted. 38 U.S.C.A. §§ 2307 (West 2002); 38 C.F.R. §
3.1600 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA)
VA has a duty to notify claimants for VA benefits of
information necessary to submit to complete and support a
claim and to assist claimants in the development of evidence.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2006).
In this case, the law, and not the evidence is dispositive.
The United States Court of Appeals for Veterans Claims ("the
Court") has held that when the law, and not the underlying
facts or development of the facts are dispositive in a
matter, the VCAA can have no effect on the appeal. Manning v.
Principi, 16 Vet. App. 534, 542 (2002); Smith v. Gober, 14
Vet. App. 227 (2002) (VCAA has no effect on appeal limited to
interpretation of law); Dela Cruz v. Principi, 15 Vet. App.
143 (2001) (VCAA not applicable where law, not factual
evidence, is dispositive); see also VAOPGCPREC 5-2004 .
Therefore, the Board finds that no further action is
necessary under the VCAA and that the case is ready for
appellate review.
Background and Analysis
The veteran died in November 1996. The cause of death listed
on his death certificate was an acute myocardial infarct due
to coronary artery disease due to diffuse arteriosclerosis.
The veteran was not service-connected for any disability at
the time of his death.
For the purposes of burial benefits, if a veteran dies as a
result of a service- connected disability or disabilities, an
amount may be paid toward the veteran's funeral and burial
expenses including the cost of transportation of the body to
the place of burial. 38 U.S.C.A. § 2307; 38 C.F.R. §§
3.1600(a), 3.1601-3.1610. The appellant is entitled to
receive burial benefits on a service-connected basis if the
evidence establishes that a disability incurred or aggravated
by service either caused or contributed substantially or
materially to cause death. 38 U.S.C.A. § 1110; 38 C.F.R. §
3.312.
For a service-connected disability to constitute a
contributory cause, it is not sufficient to show that it
casually shared in producing death, but rather, the evidence
must show that there was a causal connection. 38 U.S.C.A. §
1310; 38 C.F.R. § 3.312(c).
The appellant contends that her father's death was service-
connected, and thus, she is entitled to funeral and burial
expenses provided for under 38 U.S.C.A. § 2307 for service-
connected deaths.
The Board acknowledges the appellant's statement that the
veteran's service in the Panama Canal Zone caused a kidney
disorder. As a lay person, however, without the appropriate
medical training and expertise, she is not competent to
provide a probative opinion on a medical matter, to include
the diagnosis of a specific disability or the origins of a
specific disability. See Bostain v. West, 11 Vet. App. 124,
127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge").
Although the veteran's daughter contends that her father died
from failing kidneys, the death certificate lists the cause
of death as an acute myocardial infarct due to coronary
artery disease due to diffuse arteriosclerosis. Other
significant conditions contributing to death but not
resulting in the underlying cause were metastatic bladder
cancer and senility. The veteran was not service-connected
for any of the above disorders, and there is no competent
evidence supporting the theory that a kidney disorder or
disease was the cause of death.
The Board observes that the veteran's death is not service-
connected for the reasons discussed above. Thus, the
appellant is not entitled to service-connected burial
benefits. Accordingly, the appellant's claim for service-
connected burial benefits must be denied.
ORDER
Entitlement to burial benefits based on service-connected
death is denied.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs